Jon Katz, P.C. fights for our clients armed with the following principles: (1)
We stick to our highly-experienced roots of going to the mat
one client at a time, regardless of how anonymous or high profile is our client
or the case, and regardless of how controversial
the matter; (2) Our sole obligation is to our clients and justice,
in a legal system with the potential of doing substantial justice, but also
fraught with landmines to inflict severe harm; (3) We keep at least an arm's
length from the legal establishment, opposing lawyers, judges, and authorities,
in order to keep our clients' interests and justice first; (4) Because nothing
beats in-depth experience, your case stays with one or both of our two founding
law partners -- with over thirty years of combined experience -- from beginning to end.

Jon Katz, P.C. advocates for justice often in the most heated of arenas,
whether it be before initially-skeptical juries, judges firing off questions at
a machine-gun clip, or such highly-charged settings as the O'Reilly
Factor. For a taste of our advocating style, click our recent Fox News
interview below (O'Reilly
Factor, Jan. 25, 2006, and rebroadcast during Super Bowl Sunday halftime), and
click here
for more news appearances.

This
follows up on our June 29 blog entry about the Supreme Court's 5-3 (with Chief
Justice Roberts' self-recusal) rejection
of Guantanamo military commission tribunals, Although a majority of the
Supreme Court agrees that such military commission tribunals exceed statutory
authority and the Geneva Conventions (which are incorporated into the Uniform
Code of Military Justice), this Hamdan
case gives the president the option to try to obtain Congressional authority for
such commissions.

Hamdan
prohibits foreign detainees from receiving protections below those assured to
United States military members through courts martial, as opposed to the
military commission rules that would have permitted convictions leading to
imprisonment and even death, before military personnel on the basis of evidence
not heard by the defendant and of the grossest type of hearsay not admissible at
all in a civilian court or at a court martial.

Each
time our government is willing to shortchange even the most allegedly heinous
terrorists of a full and fair trial, our own rights to a fair prosecution and
trial are threatened. Be on the lookout for -- and please urge your Congress
member to oppose -- any new presidential proposal to Congress to authorize such
military commissions.

Meanwhile,
stay tuned to whether the federal government will protect Mr. Hamdan's
military lawyer, Lt.
Cmdr. Charles Swift, from negative consequences for having successfully
stood up to President Bush in the Supreme Court. See Seattle
Post-Intelligencer article here.
Absent such protections, no member of the United States military will be able to
rely on zealous and independent representation from a military-appointed lawyer
in a court martial. By Jon Katz.

Jon Katz, P.C. appears on Free
Speech Radio News, supporting the New York Times's right to report on the
SWIFT program.

Reporters
from wide-ranging parts of the political and more-biased/less-biased spectrum
interview us. On June 28, it was the Pacifica-related Free
Speech Radio Network, which has a strong anti-Bush bias, as do I. Pacifica
has played a critical role with the First Amendment with such activities as broadcasting
Allen Ginsburg's "Howl" (which became the subject of a failed
obscenity prosecution) in 1957, and fighting
federal indecency rules in the Supreme Court after broadcasting George
Carlin's "Seven Dirty Words" monologue. Pacifica fills a
critical void, accepting no donations from major corporations, playing the best
jazz and serving a wide range of the community (e.g., with Von Martin's
excellent "Caribbeana"
weekend program on its District of Columbia WPFW station), and presenting such programming as Democracy Now, which, while fully biased, is also fully
fearless in standing up to power.

Yesterday,
a 5-4 Supreme Court majority (with the opinion written by Justice Scalia)
reversed a criminal conviction where a Missouri federal trial judge improperly
forbade a California lawyer from being admitted to appear specially for the case
along with local counsel to represent a drug defendant. The case is U.S.
v. Gonzalez-Lopez, ___ U.S. ___, No.
05-352, Oct Term 2005 (June 26, 2006). The Court called the rejection of the
California lawyer's special admission application a structural error that
required reversal of the conviction, rather than engaging in harmless error
review. Unless the trial court dismisses the case, which seems unlikely, Mr.
Gonzalez-Lopez now will finally receive his choice of counsel.

Mr.
Gonzalez-Lopez is defended by Joseph Low of California and local lawyer Karl
Dickhaus, who are fellow attendees of the Trial
Lawyers College. Unfortunately, four justices dissented: George
Bush, II's appointees Chief Justice Roberts and Justice Alito, joined by
Justices Thomas and Kennedy. Your vote for president and senator counts when it
comes to Supreme Court nominations and confirmations. By Jon
Katz.

June
26, 2006

Will
the Supreme Court in the future have juries determine the existence of prior
convictions for enhanced sentences?

The
United States Supreme Court recently denied certiorari review of three
defendants' federal sentences that exceeded the statutory maximum after the
respective sentencing judge, rather than a jury, found that the defendant had a
prior conviction that enabled a sentence exceeding the otherwise applicable
maximum available sentence. The case is Juan
Rangel-Reyes, et al., v. U.S., ___ U.S. ___, 2006
U.S. LEXIS 4513, Nos. 05-10706, 05-10743 and 05-10815, Oct Term 2005
(June 12, 2006)

The
question remains whether the Supreme Court will review this issue in the future,
particularly if it accompanies other appellate issues that the Court wishes to
review. Some insight into that question may come from Justice Stevens's
following statement agreeing with the cert. denial (which somehow did not
get included on the Supreme Court's website), and Justice Thomas's dissent,
that argues for having juries decide whether defendants have prior convictions
making them eligible for sentences exceeding the otherwise applicable statutory
maximums.

In
this case, Justice Stevens wrote:

While
I continue to believe that Almendarez-Torres v. United States, 523
U.S. 224 (1998), was wrongly decided, that is not a sufficient reason for
revisiting the issue. The denial of a jury trial on the narrow issues of fact
concerning a defendant's prior conviction history, unlike the denial of a jury
trial on other issues of fact that give rise to mandatory minimum sentences, see
Harris v. United States, 536 U.S. 545 (2002), will seldom create
any significant risk of prejudice to the accused. Accordingly, there is no
special justification for overruling Almendarez-Torres. Moreover,
countless judges in countless cases have relied on Almendarez-Torres in
making sentencing determinations. The doctrine of stare decisis provides
a sufficient basis for the denial of certiorari in these cases.

Rangel-Reyes,
___ U.S. ___, 2006 U.S. LEXIS 4513.

Justice
Thomas dissented from the denial of certiorari review, championing the
right to have a jury determine the existence of such prior convictions:

The
Court's duty to resolve this matter is particularly compelling, because we are
the only court authorized to do so. See State Oil Co. v. Khan,
522 U.S. 3, 20, 118 S. Ct. 275, 139 L. Ed. 2d 199 (1997) ("It is this
Court's prerogative alone to overrule one of its precedents"). And until we
do so, countless criminal defendants will be denied the full protection afforded
by the Fifth and Sixth Amendments, notwithstanding the agreement of a
majority of the Court that this result is unconstitutional. There is no good
reason to allow such a state of affairs to persist.

Rangel-Reyes,
___ U.S. ___, 2006 U.S. LEXIS 4513.

If
the Supreme Court ever issues a decision requiring a
jury to determine the existence of such prior convictions, it will be essential
to have a bifurcated trial whereby the jury first decides the guilt-innocence
issues and sentencing-related factors (other than prior convictions), and then
decides the existence of relevant prior convictions. To do otherwise would be to
unconstitutionally prejudice the defendant by letting the jury know of prior
convictions before the defendant is convicted. As to Justice Thomas's assertion
of "the agreement of a majority of the Court that this result
is unconstitutional," Justice Stevens's above statements seem to remove him
from being in that majority in the future.

In
any event, I support making prior convictions a jury issue. Too often, court
records incorrectly list the resolution of a prior case. I would want the
ability to argue the issue before a jury rather than to a sole judge. By Jon
Katz.

As
I have said before, unfortunately,
the federal sentencing system is so draconian that it strikes tremendous fear in
many defendants against pleading not guilty and going to trial, even when they
are innocent. It is critical that when plea negotiations take place, that they
be from a position of strength.

When
plea agreements are reached, specificity is critical. This was made
crystal clear recently by the United States Court of Appeals for the Fourth
Circuit in U.S. v. Allen, No.
04-4048 (4th Cir. June 14, 2006). In Allen, the defendant faced a
fifteen-year mandatory minimum prison sentence for a firearm possession
violation while having "three previous convictions ... for a violent felony
or a serious drug offense." 18 U.S. Code § 924(e)(1).

Bravo
to the trial judge who departed eight levels from the presentence report's
recommended offense level, to arrive at sentencing guidelines of 63-78 months,
despite the fifteen-year mandatory minimum sentence faced by the defense. The
prosecutor appealed from the trial court's going below the prosecutor's
recommendation of a 151 to 188-month sentencing range. Even though the
prosecutor's sentencing recommendation shows the government was agreeing that
the defendant had provided substantial assistance sufficient to sentence Mr.
Allen below the fifteen-year mandatory minimum, the appellate court refused
going below the mandatory minimum sentence absent the government's motion for
such a sentencing departure under 18 U.S. Code § 3553(e). The appellate court
reached this ruling even though the prosecutor had requested a substantial
assistance downward departure under U.S. Sentencing Guidelines Manual §
5K1.1.

Fortunately,
in remanding Mr. Allen's case for re-sentencing, the Fourth Circuit says that:
"Given counsel for the government's concession at oral argument that he
intended the § 5K1.1 motion to include, albeit sub silentio, a §
3553(e) motion as well, one would assume that the government has obligated
itself to do so on remand." Allen further declares that:
"Regardless of the sentence ultimately imposed, the court must fully and
articulately explain its reasons for choosing a given sentence, especially
if a departure or variance is involved." Allen(emphasis supplied).

The
Fourth Circuit is known as one of the most conservative appellate courts, making
precision with plea agreements all the more critical in this circuit that covers
Maryland, Virginia, West Virginia, North Carolina, and South Carolina. By
Jon Katz.

June
23, 2006

Hopefully,
Betsy Ross rolls in her grave - Contact your Senators and Congress members to
vote against the flag desecration Constitutional amendment.

Seventeen
years after a Supreme Court majority correctly forbade laws against desecrating
flags (Texas
v. Johnson, 491 U.S. 397 (1989)), Congress is closer
than ever to amending the Constitution to ban flag desecration.

A
Senate majority is leading the charge to amend the Constitution, to state:
"The Congress shall have power to prohibit the physical desecration of the
flag of the United States." The House also has a sizeable number of
sponsors supporting the same language to amend the Constitution. Please contact
your senators and Congress members now to vote against this amendment,
which has been submitted under S.J.
Res. 12 and H.J.
Res. 10. Click the foregoing links to see the list of the amendment's
sponsors. A vote may well take place very soon; please do not wait to voice your
opposition.

From
a practical standpoint, the flag desecration amendment movement invests too much
energy (Constitutional amendments must pass in Congress and the states) in a
problem that is minimal. How many of you have seen anybody burning an American
flag lately (at least on United States soil)?

From
an individual liberties perspective, the stakes are high, starting with the very
vague and overbroad language of the amendment. The amendment does not define
desecration. Does it include accidentally letting one's flag fall to the mud and
stay there after a hurricane? Does it include flying flags as part of a cheesy
car dealer promotion? The amendment does not define the flag. Does it include
the many artists' renditions of the American flag, including this
anti-war rendition on talkleft.com and the variation of the American flag
that displays a proud Native American? The flag desecration amendment dishonors
the very flag that it claims to support. The flag flies stronger every time that
robust expression is protected in the United States, even when the flag is
burned. This blog and our website recount many pathetic instances of government
censorship in the United States, all counter to the First Amendment. If the flag
desecration amendment passes, the censors will not stop there.

For
more information on opposing the flag desecration amendment, see the ACLU's
site. By Jon Katz.

June
22, 2006

On
Wenyi Wang's behalf, Jon Katz, P.C. asks the White House for the name of the
Chinese television cameraman who restrained her.

We
last discussed Wenyi Wang and her courageous stand for human rights in China on June
8 and April 24. It is a
true honor finally to have met Ms. Wang, and to have sent the letter below (and here)
to the White House press office on her behalf.

Yesterday
in federal court, where Ms. Wang is defended by Assistant Federal Public
Defender David Walker Bos, an agreement was reached to dismiss
her case in April 2007 on the condition of not committing any crimes during
that period.

Falun
Gong-run Epoch
Times
yesterday reported that Ms. Wang clarified that her insistence to the
Chinese president at the White House lawn to stop persecuting Falun Gong
"was referring to the Chinese Communist regime's policy of having hospitals
to harvest organs from live Falun Gong practitioners." Whether or not such
accusations are true, it appears that China's rampant executions are timed for
organ harvesting, as addressed by BBC
News in April 2006 and by the State
Department as long ago as 2001. Fortunately, and remarkably, such high-level
Chinese figures as a law dean and a deputy justice minister respectively support
abolishing the death penalty and long-term incarceration followed by
release. If China abolishes the death penalty, the United States will step one
rung up as one of the world's most active executioners.

Jon Katz, P.C. strongly supports Wenyi Wang's fight against her unjust prosecution,
without regard to her Falun Gong membership. Jon Katz, P.C. strongly supports
the First Amendment rights of people of all political and social stripes, from
rabid Republicans to radical leftists to the pro-lifers who demonstrate weekly
against the Planned Parenthood down the hall from us to the pro-choicers who
praise Planned Parenthood. Following is the letter we sent on Ms. Wang's behalf
to the White House Press Office:

June
22, 2006

Press
Office

White
House

1600 Pennsylvania Ave. NW

Washington
,
DC
20500

Re:CCTV Reporter at the White House on April 20, 2006

To
the White House Press Office:

In my individual capacity and as the attorney for Wenyi Wang for the
purpose of this letter, I respectfully request that you provide me the following
information voluntarily and/or pursuant to all laws regarding freedom of
information.

Please provide me the name of the cameraman from China Central Television (CCTV) who was present at the White
House South Lawn ceremony on April 20, 2006, during Chinese President Hu
Jintao’s official visit.

The reason for this request includes my understanding that this cameraman
was the one who intervened when Ms. Wang called out for human rights to be
protected in
China
I also understand that this cameraman applied pressure points on Ms. Wang to
restrain her.

Clearly, such behavior is unacceptable by anybody other than appropriate
United States
government security personnel. I am sure that you and/or President Bush would
not wish to keep this CCTV cameraman’s name secret.

If
judges would only walk for a day in a parolee's shoes: Supreme Court allows
groundless searches of parolees.

The
life of a parolee is no picnic. Parole generally is better than being in prison,
but the parolee still belongs to the prison system, and can have parole revoked,
and be returned to prison, for as little as missing one appointment with a
parole agent, without any judicial intervention before such revocation takes
place. This situation is in addition to the social stigma of being an ex-con.
Before saying that parolees deserve such hardship, remember that many parolees
were imprisoned in the first place for crimes no worse than being penniless drug
addicts whose only real way to get their drugs was to sell for their provider (e.g.,
being paid one $20 rock of crack for every three rocks sold). Moreover, as DNA
testing has shown now more than ever, plenty of convicts simply were not guilty
in the first place, and were wrongly convicted either by jury mistake or by
caving into a guilty plea to avoid a harsher result with a trial loss.

If
the above scenario were not bad enough, this week the Supreme Court upheld
California's law permitting warrantless and suspicionless searches of parolees,
The case is Samson
v. California, ___ U.S. ___, No. 04-9728, Oct Term 2005 (2006). In this
instance, defendant Donald Curtis Samson was minding his own business, walking
down the street with a woman and a child. A police officer knew he was a
parolee, and took advantage of Mr. Samson's parolee status to search him without
warrant or suspicion. The officer found a methamphetamine bag in a cigarette box
in Mr. Samson's pocket. Six Supreme Court justices said this was Constitutional,
in that parole is like serving one's prison sentence outside prison walls. This
means that people are not only subject to absence of privacy within prison, but
also as parolees in California and in any other state that wishes to adopt
California's law permitting suspicionless searches of parolees.

With
Samson, California police seeking an easy search can just target
parolees. What if California police stop a driving parolee for speeding, search
him without suspicion, find drugs on the parolee, and arrest the parolee and all
the non-parolee passengers as suspects in jointly possessing the drugs?
Ordinarily, Supreme Court caselaw gives car passengers lesser standing than the
driver to contest the legality of the stop of the car and the search of the
driver. What an unjust field day Samson may provide for California
police. It's a governator
movie gone berserk.

Praised
be dissenting Justice Souter, and Justices Stephens and Breyer for joining him.
Whither Justice Ginsburg, who usually joins dissents from the more serious
court-majority violations of individual liberties? During Justice Souter's
nomination hearings, fears ran rampant among civil libertarians that he might be
a terror on civil liberties, and civil libertarians generally expected Justice
Ginsburg would be one of the more liberal justices. Justice Souter turned out to
be the least worst pick of those appointed by Reagan and Bushes I and II.
President Ford probably never expected that Justice Stephens would go to the
great lengths that he often has (but not always) to protect civil
liberties. Justice Breyer often can be relied upon to uphold civil liberties,
but he is too supportive of governmental authority to regulate behavior. Justice
Ginsburg usually votes on the right side between the dissenters and majority on
civil liberties matters,
but not this time. By Jon Katz.

June
20, 2006

Supreme
Court returns to Washington to figure out definition of "testimonial"
communication, but opens a can of worms with 911 calls.

Revisiting
Crawford v. Washington, 541 U.S. 36 (2004), yesterday the Supreme Court
went into more detail about the type of hearsay communications that are
testimonial, and, therefore, inadmissible at criminal trials under the Sixth
Amendment. The case is Davis
v. Washington, ___ U.S. ___, No. 05-5224, Oct Term 2005 (2006). In this
8-1 opinion, the court affirms the admission of a 911 call in a Washington state
trial where the caller did not testify at trial, emphasizing the call's focus on
then-present activity, as opposed to past activity, as well as the caller's
frantic attitude and exposure to danger. The court concludes this particular 911
call is non-testimonial. In this same Davis case, the court reverses an
Indiana conviction where the trial court impermissibly allowed into evidence an
affidavit to the police by the defendant's wife (the wife never testified at
trial) that responded to police questions about whether her husband had
assaulted her. In reversing the Indiana conviction, the Supreme Court confirms
that statements about past events "under official interrogation are an
obvious substitute for live testimony, because they do precisely what a
witness does on direct examination; they are inherently testimonial,"
and, thus, inadmissible. Davis (emphasis supplied).

Unfortunately,
this Davis case opens a can of worms with 911 calls, to encourage the
police to seek additional information through 911 calls in the hopes that trial
judges will still allow such official interrogations into evidence over the
Sixth Amendment's Confrontation Clause; prosecutors will insist that Davis
permits 911 calls into evidence, but, fortunately, Davis focuses on the
extent to which the 911 caller is excitedly relating events as they are
happening. Crawford and Davis are among the essential cases for
criminal defense lawyers to carry into all trials, to minimize adverse
misinterpretation by trial judges. By Jon
Katz.

The
three jurisdictions where I practice law (Maryland, the District of Columbia,
and Virginia) all present significant political reasons not to want to live
there: the District of Columbia continues having taxation without Congressional
voting representation; Virginia, per capita, is among the biggest killers
through capital punishment; and Maryland also is fully active in putting people
on death row, particularly with Baltimore County, whose State's Attorney
believes in seeking the death penalty against all death-eligible defendants, in
a cynical effort to avoid claims of a racist-applied death penalty. These
serious human rights violations in all three jurisdictions are all the worse
when viewed in the context of their shameful racist histories, with rampant de
facto segregation having been practiced throughout District of Columbia
society, and with legally mandated segregation having been practiced in Maryland
and Virginia.

A
significant recent appellate ruling on capital punishment in Virginia is Atkins
v. Com. of Virginia, ___ Va. ___, 2006
Va.
LEXIS 67, Record No. 052348 (June 8, 2006). In Atkins, the Virginia
Supreme Court overturned the jury's recommendation of a death sentence, because
it was improper for the jury to have known that a previous jury had returned a
death sentence before the case had previously been overturned on appeal (because
the United States Supreme Court finally ruled that mentally retarded people may
not be executed), and because the trial court improperly permitted the
prosecutor to present testimony of an expert who did not meet the statutory
standard for admitting testimony about whether a defendant is mentally retarded.
By Jon Katz.

June
18, 2006

Maryland
District Court commissioners wield too much power.

In
Maryland, the District Court system places too much power in the hands of court
commissioners, who set initial bonds, decide whether to issue arrest
warrants, and issue criminal charging documents. Md.
Cts. & Jud. Proc. Code § 2-607. Unlike federal Magistrate Judges, Maryland
District Court commissioners have no obligation to be attorneys or to have
formal law school training.

Regarding
court commissioners, Maryland is a land of rampant civilian-initiated criminal
complaints and cross-complaints sworn out before court commissioners,
particularly for assault cases. The word-of-mouth seems to have been around for
a long time in Maryland that after assaulting someone or being assaulted, to
visit the commissioner's office to accuse the opponent of assault, lest the
opponent do the same first. Commissioners routinely issue warrants for arrest in
such cases, without sufficient legal requirements to assure a sufficient inquiry
into the credibility of the complainant. Proceedings before court commissioners
should be recorded, but are not. This is a broken system that should be replaced
by one that prohibits the issuance of such arrest warrants without the request
of the State's Attorney's office. Currently, civilian-initiated assault charges
overfill District Court dockets, often with prosecutors waiting until the court
date to decide whether and how to pursue the charges.

Sadly,
Maryland court commissioners are permitted to author criminal charging
documents. This would be prohibited in the federal criminal system, which
requires a greater separation of powers between the courts and other branches of
government than does Maryland law. Once again, the State's Attorney's offices --
or, at worst, law enforcement officers, if authorized to do so by the State's
Attorney's offices -- should be required to be the sources authorized to author
criminal charging documents, to be issued subject to the approval of a court
commissioner or judge.

Finally,
Maryland court commissioners wield great power by being authorized to set bonds
on arrested persons. Even though defendants have a right to have such bonds
reviewed by a District Court judge, before such a review, many defendants
already have paid the bond or a percentage to a bail bondsperson to avoid
spending one or more nights in jail. Moreover, Maryland law and practice
currently do not provide for Public Defender or other indigent-defense counsel
representation at initial bond hearings, thus often turning such hearings
into insufficient reviews of the bond set by the commissioner, and often leaving
presumed-innocent defendants in jail with unfairly high bonds.

My
following bond victory from a few days ago is sweet for my client, but
underlines that if he had been indigent, he would not have had counsel to
advocate to reduce the commissioner's high bond. Last week, my client and I
appeared for trial in District Court for a cocaine possession trial. The
prosecutor dismissed that charge before the case was called for trial, and had
my client arrested by the deputy sheriff on a warrant for importing a small
amount of drugs into Maryland. Fortunately, when the original charge was
dismissed, I convinced the
presiding judge
to
review the bond that same day if the commissioner set one that my client could
not pay.

I
then went to speak with the
commissioner, who discouraged me from saying anything, insisting she would be
making an independent decision. I
told her that I knew that her decision was required
to
be independent, but that for an independent decision
to
be reached, defense counsel must have the right
to
give at least brief input, which she allowed me
to
do apparently with closed ears. She then set a bond that doubled my client's
original bond arising from the same alleged incident, even though the original
bond also was for drug felony charges (which I later convinced the court to reduce to
a charge of simple drug possession).

Before
my client ever appeared before the commissioner, I had already drafted an
emergency motion for the District Court to reduce the bond. Less than two
minutes elapsed between the commissioner's setting of a bond and my filing the
emergency bond motion. Fortunately,
less than two hours later, the judge -- with the prosecutor fully on board --
amended my client's pretrial release conditions to personal recognizance
(meaning no need to pay any bond), after I informed the court that my client
already had shelled out substantial funds
to
a bail bondsperson for his original drug felony charge. The judge and
prosecutor saw my client as no risk of flight, having appeared timely in court
on al previous court dates, and having no prior convictions.

In
sum, Maryland court commissioners wield too much power, and this power must be
reigned in. By Jon Katz.

Following
up on my June 15 posting
against the Supreme Court's tragic Hudson
decision, watch this video
of police brutality against a prosecutor's daughter arrested for disorderly
conduct. This type of police abuse is all too common; yet, in justifying the
erosion of the exclusionary rule (for suppressing evidence obtained unlawfully
by the police), Justice Scalia trumpets "increasing professionalism of
police forces."

How
did Justice Scalia get convinced of such "increased professionalism"
of police? He basically cites treatises for his proposition, but a judge can
always find a treatise to support his or her position.

My
only interchange with Justice Scalia was in 1988, when he came to speak at my
law school. During the question session, I asked his view of then-Chief Justice
Rehnquist's professed interest in speeding up the death penalty appellate and habeas
corpus process in the federal courts. Justice Scalia said he had no opinion
on it.

Praised
be my fellow law school Amnesty International members, who collected over eighty
signatures of the school's students, decrying the death penalty as a violation
of the Eighth Amendment's prohibition against cruel and unusual punishment. At
the conclusion of Justice Scalia's lecture, before he went two blocks away to a
fancy concluding wine and cheese law school reception -- while the general
public in the street suffered from his many wrongly-reached majority votes to
curtail Constitutional rights -- I walked up to him, and said: "Justice
Scalia, here is a petition signed by over eighty law students that the death
penalty is unconstitutional." He would not take it, saying that if I wanted
to lobby him, to do so through oral argument (or ,I suppose, by filing an amicus
brief); however, the Supreme Court only accepts one to two percent of certiorari
petitions for oral argument. I told him I'd send the petition to his secretary
in case he changed his mind. He said she would throw it out. Was she somehow a
Radar O'Reilly, who knew to look out for my letter before it was ever sent? He
said she throws out all correspondence seeking to influence his opinion.

Not
long after this interchange with Justice Scalia, I read the Supreme Court's June
1987 decision in Booth v. Maryland, 482 U.S. 496
(1987), the later-reversed decision that banned victim-impact statements in
capital murder sentencing proceedings. Imagine my head-scratching (a gross
understatement), when I read the scathing dissent of this justice who
several months thereafter
refused my anti-death penalty petition, where he did not even give any citations
to his claim that: "Recent years have seen an outpouring of popular concern
for what has come to be known as 'victims' rights' -- a phrase that describes
what its proponents feel is the failure of courts of justice to take into
account in their sentencing decisions not only the factors mitigating the
defendant's moral guilt, but also the amount of harm he has caused to innocent
members of society." Booth, 482 U.S. at 520.

In
this society that pays so much lip-service to democracy and free speech, lawyers
must breathe life into such principles by emphasizing to the public that their
vote for president will critically affect who sits on the Supreme Court, whose
members often sit for decades and whose rulings reverberate for decades, at the
very least. By Jon Katz.

June
15, 2006

Sending
Hudson down the river: Further supporting the reasons for having feared the
confirmations of Justices Roberts and Alito.

Today
is a dark day for the Constitution's Fourth Amendment, with the issuance of Hudson
v. Michigan, ___ U.S. ___ (June 15, 2006). On the micro-level, the case
severely emasculates the previously firmly-rooted rule that generally requires
police to knock and announce their presence before executing a search warrant on
a house, in order to minimize violence by the occupants towards suspected
burglars and to minimize the physical damage caused by a forced house entry. On
the macro level, Hudsonplaces too much value on the law enforcement function over the Fourth
Amendment's prohibition against searches and seizures that lack probable cause
or that are otherwise unlawful. Fortunately, of the five justices voting to
affirm Mr. Hudson's conviction, concurring Justice Kennedy appeared to show more
restraint than the remaining justices voting to affirm, suggesting that the
Supreme Court will not run as roughshod over the Constitution as it otherwise
might have. Kudos to the four dissenters -- Justices Breyer, Ginsburg, Stevens,
and Souter. When I vote for president, I take strongly into account the type of
judicial nominations the presidential candidate is likely to make to all the
federal courts. In Hudson,
all justices voting to affirm were nominated by presidents Reagan (Scalia
and Kennedy), Bush I (Thomas), and Bush II (Roberts and Alito). By Jon
Katz.

When
I returned from two of the nation's greatest lengthy trial lawyer seminars --
the Trial Practice Institute in
Macon and the Trial Lawyers
College in Dubois -- a necessary next step was to apply what I learned to
the real world of judges, prosecutors and jurors.

Both
seminars included excellent practice sessions for telling our story throughout
the trial, doing first-person openings and closings, jury voir dire/selection
that starts telling our story even before opening statement, and storytelling
cross-examination. What to do, though, when a judge throws roadblocks in the way
of this path? Some ideas follow: When an opponent objects during my examination
of a witness, I keep my eyes on the prize (the witness) unless the judge invites
a reply or if I feel one is needed. This helps keep control of an opposing
witness and comfort in my own witness.

A
federal judge recently forbade
doing opening statements in the first-person of the criminal defendant, in
part because the prosecutor cannot cross-examine a criminal defendant who
asserts the Fifth Amendment right not to testify. At least, though, the same
judge confirmed that a prosecutor may not take on the role of a crime victim in
the opening statement, either. The case is U.S. v. Lemieux, U.S. Dist.
Ct. Crim. No. 05-104-P-H-02 (D.Me.) (order on opening statements issued June 12,
2006). Presenting a party or critical witness in the first person in opening or
closing, when done right, can be a powerful way to convey a party's story to the
jury without the impediment of legalese. When a judge prohibits the first
person, a skilled lawyer will move right into the third person as if s/he is
playing back a film. Meanwhile, a counterpoint to the foregoing Lemieux
decision is the unpublished People v. Barsotti, 1997 Mich. App.
LEXIS 526 (Mich. Ct. App. February 4, 1997), which confirms that: "A
prosecutor [and, therefore, the criminal defense] is not required to state his
arguments in the blandest possible terms...In addition, the prosecutor's use of
a vulgarity while cross-examining defendant, although perhaps crude, was not
legally improper." In other words, prohibiting first-person openings
hamstrings a party's right to present a persuasive case.

Part
of telling the story effectively throughout the trial involves a series of
storytelling direct and cross-examination questions of witnesses, rather than
examination with question marks (e.g., in questioning a cooperating
government witness: "In jail, you've always had to watch your back"
versus "Don't you have to always watch your back in jail?"). If the
judge tells the lawyer s/he's testifying rather than questioning, as Roger Dodd
effectively suggests, the lawyer can switch to: "In jail, you've always had
to watch your back, haven't you?" Eventually, the judge may appreciate the
eventual deletion of the added "don't you's", "didn't you's"
and "wasn't it's" at the end of each cross-exam question, back to
where the examining lawyer started from.

When
judges or court rules permit real jury voir dire (enabling lawyers to ask
questions of the potential jurors, rather than submitting proposed written
questions to the judge), the jury can know some of the essentials of a lawyer's
case (and sometimes much more than that) before opening statements even begin.
However, the federal system and such states as Maryland mandate the latter
approach unless the presiding judge decides otherwise. In jurisdictions where
lawyer-directed jury voir dire ordinarily is not allowed, the lawyer can
try to convince the judge that at least ten minutes of lawyer-directed voir
dire, to follow court-directed voir dire, is so critical to the lawyer's
case that s/he will agree to shorten the opening or closing by a similar amount
of time. For more ideas on this approach, read Sunwolf's
essential Practical
Jury Dynamics and Jury
Thinking.

Among
the many benefits of the Trial
Practice Institute and the Trial
Lawyers College is the opportunity to learn with other lawyers deeply
devoted to justice, with some of the most amazing teachers (found both among the
staff and attendees), in environments where taking risks harms no client and
where deep trust and lifelong new friendships develop that foster such
risk-taking and sometimes profound personal development and growth. Essential to
rounding out such experiences is to get back to the courtroom as soon as
possible to apply the newly-acquired strengths to the rough-and-tumble of the
courtroom, where the seminar attendee might have changed tremendously, but now
is in a room full of people (and an entire local population) who have not
undergone such a metamorphosis. By Jon
Katz.

June
13, 2006

Engaging
in battle without anger.

Some
opposing lawyers are so unpleasant that I advise my clients in advance about
them, and explain that their expressed anger and irritation and intimidation
tactics often are feigned or exaggerated, and, when not feigned, often result
from the opponents' fear, with a bunch of fire-spewing from a cowardly ersatz
wizard behind a curtain in Oz. At first blush, it is irritating to know that so
many opposing lawyers and others do not give a damn about justice and fairness,
but that is human nature to have so many people like that

Whenever
dealing with opponents, I do my best to apply the lessons of t'ai
chi, and Cheng Man Ching, who developed the t'ai
chi chuan short form that I practice, and to apply his lessons of
eliminating any anger towards the opponent. To do otherwise is to bring on
tension, fear, and, ultimately, weakness. Not to be crass, but not many people
would get angry at the tiger making the attack. The main reason that people get
angry at other people's viciousness is feeling disappointed, at the very least,
that the opponent does not appear to give a damn about fairness and justice. We
are stronger when we reduce our expectations of others, while still trying to
motivate them towards our side, and while still keeping hope that one day they
will see the light of justice and fairness.

During
the last few days, I have dealt with a couple of very unpleasant opponents, to
say the least. Applying the lessons of t'ai chi with them has served me well.
For more about this approach, see here
and here. By Jon
Katz.

Kudos
to U.S. District Court Judge Gregory A. Presnell for strongly attacking the
stark federal sentencing disparities between cocaine base (sometimes called by
the non-legal term "crack") and cocaine hydrochloride (cocaine in its
powder form). The case is U.S.
v. Hamilton, U.S. Dist. Ct. Crim. No. 6:05-cr-157-Orl-31JGG (M.D. Fl.
2006) By Jon Katz.

On
June 5, 2006, the Supreme Court ordered the dismissal of a federal prosecution
where the trial judge did not give sufficient justification for excluding
ninety-one days from the federal Speedy Trial Act's general requirement that
criminal defendants go to trial within seventy days from the filing date (and
making public) of the information or indictment, or from the date the defendant
has appeared before a judicial officer of the court in which such charge is
pending, whichever date last occurs. Zedner
v. U.S., ___ U.S. ___, 126 U.S. 1976 (2006).

In
Zedner, the Supreme Court ruled that a defendant may not prospectively
waive the application of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. Zedner
further provided that the Speedy Trial Act is intended to protect not only
defendants, but the public, as well, see also Barker v. Wingo, 407
U.S. 514, 519 (1972), thus requiring a trial court to explain on or in
the record the justification for excluding any time period from the seventy-day
time limit set forth in 18 U.S.C. §§ 3161(c)(1) for taking a case to trial.
The case must be dismissed for commencing after seventy days so long as the
trial court does not sufficiently articulate the reasons for excluding any time
period from the seventy-day deadline for starting a trial, and so long as the
defendant moves to dismiss the case prior to trial or before entering a guilty
plea. Zedner
v. U.S., 126 U.S. 1976. Zedner does not explain the circumstances
under which such a dismissal will be prejudicial or non-prejudicial.

Meanwhile,
even absent the Speedy Trial Act, the Sixth Amendment of the Constitution
requires weighing the following four factors to determine whether a criminal
defendant's speedy trial right has been violated: "the length of any delay,
the reason for the delay, the defendant's assertion of his right, and prejudice
suffered by the defendant." U.S. v. Von Neumann, 474 U.S. 242, 246
(1986) (citing Barker
v. Wingo, 407 U.S. 514 (1972). Barker confirms that: "In
addition to the general concern that all accused persons be treated according to
decent and fair procedures, there is a societal interest in providing a
speedy trial which exists separate from, and at times in opposition to, the
interests of the accused." Barker, 407 U.S. at 519. In other words,
although some criminal defendants will benefit from having more time to prepare
for trial by waiving certain speedy trial rights, the courts will balance the
public interest against the defendant's interest in postponing the trial,
sometimes to the defendants' detriment, particularly in the Eastern District of
Virginia, which is known as the rocket
docketBy Jon Katz.

June
9, 2006

Not
guilty - a phrase too many criminal defendants fear.

It
might seem counterintuitive that sometimes it is harder for an able criminal
defense lawyer to convince a client to plead not guilty than to
plead guilty. Particularly when a client who feels s/he has committed a crime
sees the prosecutor with a s__t-eating grin when proclaiming a plea offer of
"no jail time" (all too often, whether or not intentionally, too many
prosecutors do a backdoor end-run around the prohibition against communicating
with represented opponents about the case absent counsel's approval to do so, by
speaking (and sometimes bickering) loudly enough to the lawyer so that the
client will hear), the defendant may think that the lawyer is taking such risks
only because it is not the lawyer facing jail. The competent lawyer, meanwhile,
explains to the defendant that even if the judge accepts a recommendation of no
jail, jail can come later down the line from any finding of a probation
violation, and a conviction today can mean a higher sentence for any future
convictions, let alone the potential collateral consequences of a conviction to
prospects for employment, educational opportunities, professional and personal
licensing, and immigration benefits.

The
fact remains that criminal defendants have no obligation to make a prosecutor's
job easier by pleading guilty or by assisting in any other way. This fact gets
obscured by the draconian
federal sentencing system that favors doing the opposite, unless the
defendant's roll of the dice in pleading not guilty results in an acquittal. When
a criminal defendant has competent counsel, It is generally wise to plead not
guilty when the sentence is unlikely to be more adverse if the defendant is
found guilty through a trial rather than through a guilty plea. When the
criminal defense lawyer recommends a guilty plea to a client, it must be with
the intent of reducing harm, and must come from a position of strength.

Yesterday,
my client accused of possessing cocaine accepted my advice to go to trial. As a
result, we won, after the prosecutor rested her case after the judge kept
sustaining my objections to the testimony of the first police witness about his
grounds for stopping my client's car. In this instance, the officer testified
that he stopped the car after setting a pace for speeding. However, his car was
new at the time, and the police had never verified the speedometer's
calibration. The judge correctly found it irrelevant as to whether the
speedometer was calibrated several weeks after the car stop.

Whether
an acquittal comes in a misdemeanor case like this one or a bigger case, the
rush of victory always is wonderful. In this instance, the police stop of my
client's car for speeding just eight miles over the speed limit seemed a
subterfuge -- which the appellate courts, unfortunately, generally permit -- to
investigate for crimes beyond any moving violations. When Bruce Springsteen
wrote about how wonderful it feels to be riding on the open road, in "Born
to Run", perhaps he had not yet suffered a harassing police traffic
stop. On the other hand, upon winning an acquittal in this case, I said to
myself, what a wonderful world. By Jon
Katz.

June
9, 2006

George
Bush: Protecting the rights of the rich over the rights of everyone.

George
Bush has spent his entire life in wealth and privilege. While some privileged
politicians can relate to the struggles of ordinary people, including Ted
Kennedy (regardless of his faults, which I shall not minimize), president Bush
seems too out of touch with the needs of ordinary people; consequently, the
rights of criminal defendants and so many others suffer severely as a result. It
is in that context that Bush pursues the ongoing Gulf War II, approves secret
transfers of terror suspects to countries that do not respect human rights
(to say the least), and approves the continued denial of basic rights to the
Guantanamo inmates.
Before you begin enjoying the weekend, turn on your speakers for a sobering
rap against Bush, presented by Billionaires
For Bush. By Jon
Katz.

World
leaders who don't give a damn about individual liberties may sleep more easily,
knowing that the Bush administration will kowtow to them (at least if the
administration considers them critical to the "national interest") by
arresting and prosecuting anybody having the audacity to interrupt world leaders
basking in a White House lawn photo opportunity, by daring to bring them back to
earth by demanding they protect basic human rights. Add the First
Amendment to the rights that the Bush administration treats as no more
sacred than toilet paper.
(Sadly, it is very possible that other presidential administrations of any party
would have done the same thing; it is not enough to vote or impeach the rascals
out of the White House if similar rascals will fill the void).

Here
is updated information on the federal government's prosecution of Wenyi Wang
(see our April 24 blog
entry) for shouting for human rights in China during president Hu Jintao's
speech on the White House lawn. It took some digging to find Ms. Wang's case
file, because the federal court lists her under a different first name, as
"Wen Wang." In true Orwellian-ese, the prosecution alleges
that Ms. Wang did "knowingly and willfully intimidate, coerce, threaten or
harass Chinese President, Jinto [sic] Hu, a foreign official in the performance
of his duties," in alleged violation of 18
U.S.C. §
112(b). Fat chance. All Ms. Wang did was
to exercise her First Amendment right to demand
that human rights be protected in China, and the prosecution's "factual"
allegations show nothing more than that. Fortunately, at least, on May 3,
2006, the trial court removed
Ms. Wang's pretrial condition to stay away from Washington, DC.

If
convicted, Ms. Wang faces up to six months incarceration and a fine. Sadly, as
discussed in our May 5
blog entry, because the potential sentence is not higher than six months in
jail, Ms. Wang will have no right to a jury trial, and will be tried by a magistrate
judge, rather than before one of the District Court judges, who are
appointed for life by presidential nomination and Congressional confirmation.

Ms.
Wang awaits a June 21, 2006 preliminary hearing in Courtroom 2 at 1:45 p.m.,
which will be open to the public (as opposed to the cloaked and daggered
approach of the Bush administration). Her case number is Crim. No.
1:06-mj-00182-DAR. Ms. Wang is represented by Assistant Federal Public Defender
David Walker Bos. The prosecutor is Assistant United States Attorney Michael
Truscott. If you oppose this prosecution, please tell president Bush and the
United States Attorney in the District of Columbia, at the following addresses:
George Bush, 1600 Pennsylvania Ave., NW, Washington, DC
20500; United States Attorney Kenneth L. Wainstein, 555 Fourth Street, NW,
Washington, DC 20530. By Jon
Katz.

In
October 2005, a wide swath of the public was justifiably up in arms over the
District of Columbia's unjust zero tolerance approach to drunk driving that led
the police (probably erroneously) to believe that it could arrest
Debra Bolton for having had a mere 0.03 alcohol breath test after having had
just a glass of wine with her restaurant meal. Legions of people threatened to
abandon Washington restaurants in favor of those in Maryland and Virginia, and
rightfully so. The District of Columbia City Council met to consider emergency
legislation on the matter. However, today, eight months later, the law remains
unchanged and broken, but the District of Columbia's restaurants remain as full
as ever. D.C. Code § 50-2201.05.

Neighboring
Maryland and Virginia take a more just (but still overly harsh) approach, with a
presumption that of no drinking and driving violation for a blood alcohol level
of .05 or less, and no presumption either way from a blood alcohol level over
.05 and under .07 in Maryland, and over .05 and under .08 in Virginia. .Md. Cts.
& Jud. Proc. Code § 10-307; Va. Code § 18.2-269. The District of Columbia
sorely needs to follow in Maryland's and Virginia's footsteps of presuming no
drunk driving violation for a blood alcohol content of .05 or less. More about
the unfairness of the region's drunk driving laws is here.
By Jon Katz.

June
6, 2006

Not
a consensual encounter, so Swift justifiably gets away.

Once
again, another Defendant unjustifiably had to agonize over a trial loss and loss
before Maryland's Court of Special Appeals before having his Constitutional
rights vindicated by Maryland's highest court. The case is Swift
v. Maryland, ____ Md. ___, No. 98, Sept. Term 2005 (2006). In this case,
appellant/defendant Swift was doing what he had the right to do: walk on the
streets late at night, and even turn his head around from time to time. A police
officer approached Swift, asking to talk with him, and for his identification.
Bless the officer who stopped Swift at least to have admitted at the suppression
hearing that when Swift tried to leave when the officer was checking for open
warrants, the officer told him to stay during this check. In other words, by
this point this was not a consensual encounter with the police (when are they
ever consensual, other than when calling the police for help or attending the
Police Athletic League fundraiser?).

Consequently,
although Swift first put his hands up on the officer's car, arguably as a
non-verbal consent to the officer's request to search him, he had the right to
bolt away, which he did, since he already had been unlawfully seized by the time
the officer was checking for outstanding warrants on Swift. Therefore, the
search that followed the re-seizure of Swift was unconstitutional, so the
discovery of cocaine on him after the re-seizure also was unconstitutional.
Although Mr. Swift's lawyer apparently conceded no standing by Swift to argue to
suppress the gun he allegedly dropped or threw away, in that it was found on the
ground, I would have argued to suppress that, too, as being the fruit of the
poisonous tree of the initial unlawful detention. Sadly, although a criminal
defendant has an automatic right of appeal to the Maryland Court of Appeals from
an initial trial in the Circuit Court, the Maryland Court of Appeals generally
gets to pick and choose which cases to review. Had the Court of Appeals denied
review to Swift, he would have been stuck with an unconstitutional felonious
drug possession conviction. By Jon
Katz.

During
the latest Congressional immigration debates, many people have proclaimed that
they favor legal immigration but oppose illegal immigration. Because Congress
makes the immigration laws, such statements abdicate immigration policymaking to
Congress, when constituents should be making their voices heard. The vast
majority of Americans have benefited directly or through their ancestors from
immigration laws that were much more open than those in place today. The
get-tough-on-immigrants camp's rallying cry that immigrants "must play by
the rules" ignores that the rules are too narrow, onerous, and unfair
in the first place.

Our
law firm looks forward to the day that immigrating to and staying in the United
States become so favorable to immigrants that all lawyers' immigration law
practices shrink accordingly. Until that day comes, we push to open the borders
much more widely.

Consequently,
I have a new reason to avoid Dunkin' Donuts and plenty of other companies (aside
from its delicious but unhealthful and non-vegan offerings), both (1) because of
the signs
in many of their shops that proclaim ``We follow the law! This company hires
lawful workers only" (the signs appear to reply to various customers
erroneously concluding that Dunkin' Donuts employees whose first language is not
English are in the United States unlawfully), and (2) because Dunkin' Donuts is requiring
its franchisees "to participate in the [now-voluntary] Basic
Pilot Program, which allows employers to verify a worker's status using
online databases [which often are inaccurate] from the Social Security
Administration and the Department of Homeland Security." Boston
Globe (May 30, 2006).

For
many years, federal law has unjustly turned employers into immigration law
enforcers by requiring them to verify and keep records of employees'
authorization to work in the United States, and by providing for civil and
criminal penalties for doing otherwise. 8 USCS § 1324a. The Basic Pilot Program
participants go well beyond following this unjust law.

After
defending a drunk driving client, meeting up with a tax resister.

Last
Thursday, I re-met up with an interesting gentleman after defending a client
accused of drunk driving in the Alexandria federal trial court, This courthouse
forbids cellphones and palm pilots (in case they hide bomb detonators?), and
loudly proclaims on an outside plaque and tortoise and hare sculpture that this
is indeed the rocket
docket, which can end up turning the Sixth Amendment speedy trial
right against the very defendants that the right is intended to protect.

By
happenstance, on the way back to my office, I bumped into this multi-talented
man who has paid no income taxes since before I first and last met him fifteen
years ago. When I expressed surprise that he has not been prosecuted all this
time, particularly where the federal government has doggedly pursued such
disparate people as Leona Helmsley and Tony Serra for alleged tax crimes, he
pointed out the distinction between a tax evader (who does not fully report all
income) and his tax resistance approach, which is to file complete tax returns,
but to say that taxes will not be paid, to avoid financing the military.

I
subsequently looked up the tax resister issue, to learn that at least two very
different philosophies guide the
non-payment of taxes for political reasons. One philosophy focuses on peace
and on divorcing the protestor from financing the military. Another philosophy
appears to attract anti-government right-wingers.

While
I am not a full pacifist, it is never comfortable knowing that a portion of my
annual tax payments will be spent on an overkill supply of weapons, soldiers,
and their advisors. This tax resister spreads his message of tax resistance
openly, effectively and in an even tone. Although I do not advocate not filing
and paying income taxes, this man is an inspiration for staying on the path of
peace. By Jon Katz.

June
2, 2006

The
police and I.

Starting
with kindergarten in 1968, the teachers and assemblies drilled into us that the
"police are your friend." (Ah, the fantasies of Fairfield,
Connecticut, suburbia). Around that time, walking by a man being arrested by the
shopping strip near my home, a stranger proclaimed to me that "crime
doesn't pay;" I accepted the stranger at his word, and gave the matter no
critical thought at this age of six or so. Then I saw Serpico,
which gives a critical counterpoint to the "Fairfield cops are tops"
button: police, being people, run from the good to the rotten, and everything in
between (mostly in-between). Then I saw the still and moving images of cops
beating the crap out of peaceful civil rights demonstrators in the South (and
including assaulting them with firehoses), beating the crap out of demonstrators
outside the 1968 Democratic convention in Chicago (with the subsequent Chicago
Seven/Eight trial), and, live in this decade, violating the First Amendment
rights of anti-globalization demonstrators in Washington, DC. Because police
(many of whom are very inexperienced in defusing tension and who have too narrow
life experience and intellectual ability, being drawn, after all, from the
general population, and who often constantly deal with the fear of the unknown
and real or perceived threats) are given all this power, a gun, a badge, the
power of arrest, electric shock guns and gizmos, slapjacks and nightsticks, peer
pressure to fit in, and (too often) insufficient understanding that they are
there to serve the people rather than to dominate over and control them,
flagrant police abuse is bound to happen again and again and again until we the
people push and push and push for more humane policing, which will more easily
be reached once we legalize marijuana, heavily
decriminalize all
other drugs, and legalize prostitution
and gambling,

Fortunately
for me and all nearby, I came of age before the DARE
program infested the schools; my stomach would have turned and erupted too much.
DARE continues with Nancy Reagan's overly simplistic message of "Just say
no to drugs." Which drugs? Certainly not the ones prescribed en masse
by physicians and manufactured by the huge pharmaceutical manufacturers who keep
legions of lobbyists so well paid. And don't forget the most popular
over-the-counter drugs: caffeine, tobacco, and beer/wine/alcohol. Instead of
taking this overly simplistic, pro-law-enforcement approach, I strongly advocate
a harm reduction approach, which focuses not only on the harm of abusing drugs,
but that also reduces the out-of-proportion and unjustified harm inflicted on so
many users of drugs by the criminal enforcement system, often because they were
not well-heeled enough to get their recreational drugs lawfully by prescription.
Sometimes drugs, themselves, reduce harm, from marijuana for glaucoma and to
soothe a savage soul (and to fulfill countless other medicinal
benefits), to many other drugs.

When
a police officer recently acted all irritated that my client would
"dare" to waste the officer's time to go to trial on a pot pipe charge
rather than plead guilty, I told him I was not pleased that a member of the
police from my own county where I live and work, had insufficient respect for a
defendant's right under the Constitution to force the government to try to prove
the defendant's guilt beyond a reasonable doubt. Perhaps the officer was just
parroting a tagline he'd heard: "If you don't like it, move out of the
county." Au contraire. The last time I checked, the police work for
the people, not the other way around. In any event, at trial, my client came out
no worse than if he had entered a guilty plea; I don't believe in pleading
guilty if the likely outcome of going to trial is no worse, and acquittals
do not come without "not guilty/innocent" pleas.

Consequently,
it probably will not surprise you that, in reply to a former client who left me
a voicemail late last night that he had been robbed, and asked for advice on
dealing with the officers taking the report, I said that I am too biased about
the police and prosecution role to be of any real benefit to him, and suggested
the names of two other lawyers who would probably not share my discomfort.

Nor
would you be surprised by the following scenario. One late afternoon, I returned
to our law firm to find a police officer's card placed under the door, without
comment. I left him a voice message that he could call me if he wanted to
discuss anything (perhaps about one of my clients, for all I know -- I'll always
listen; it's another thing whether I will divulge any information). He called
back, and told someone else in the office that the Planned Parenthood had been
broken into, and he wanted to visit our suite to see if the perpetrator tried to
break into other suites. I left a responding voice mail that I would talk with
him, but that he was not to enter our suite. Among the practical reasons (let
alone philosophical reasons) for telling him not to enter was that there was no
good reason for our criminal defense, immigration, and other clients to see that
we just let in police carte blanche . Lo and behold, the next morning, what does
this police officer do? He enters our suite. I complain to him for entering
after I left a message not to do so, and he readily responds that our secretary
let him in. (Just wait until you experience the police divide and conquer
efforts). He was on our turf, and had no authority to stay if told to leave.
When he answered affirmatively that he was armed, I told him that we do not
permit weapons in our suite, and told him I would talk to him in the common-area
hallway.

The
police officer recounted that Planned Parenthood had been broken into, the
officers caught the person they believed was the perpetrator, and he was there
to check out the floor's remaining suites to see if the perpetrator had tried
the same with officers. Let me get this straight -- the officers believed they
caught the perpetrator, so the case was solved; why investigate further UNLESS
it was to get even more convictions and a higher sentence against the alleged
perpetrator? No dice. I told the officer that he was not permitted back in the
suite. He tried to up the ante by saying that he would just go to management and
get the door frame pulled off the wall; he said the door frame's not ours. I
quickly typed and faxed off a message to the building management and the chief
of police that we have leaseholder rights over the entire suite, including the
doorframe, and that under no circumstances would the police be permitted to
return absent a warrant (insufficient grounds existed to obtain a
warrant).

Police
are people, too, mind you, and many are well-meaning, even though it often is
well-meaning people that wreak havoc on the Constitution (including the communitarians).
That's what I love about the Busted
video. It shows how to assert one's rights to the police without getting nasty
about it. I love the scenario where the man stopped for a moving violation
immediately stops, gets out of the car, and locks all the doors. When the police
ask why he did it, he pleasantly replies: "Just a habit." And, with
that habit, the police have fewer, if any, legal grounds to snoop around inside.
I also love the scenario where the police knock on a house door, the woman
hosting the party exits the house, and closes the locked door behind her, all
pleasant as could be. When the police say they "need" -- notice that
they say "need" rather than "pretty please"; police don't
say "pretty please" -- to check out the house to make sure all is
okay, having responded to a report of noise (yes, parties produce noise), the
hostess smiles and says: "Look officers, I know you're just doing your
jobs, but without a warrant, I can't let you in" (lest I disappoint my high
school civics teacher -- there's a good citizen).

That's
right. It is patriotic to insist that the police follow the Constitution, and
always will be. You want to search my house, officer? Not without a warrant. You
have a warrant to search my house? I have no obligation to assist that search
(but no right to prevent the search, either). You want to talk with me? I opt
not to talk. No anger, sarcasm, or attitude needed; just the joy of celebrating
the Constitution, justice, and the true American way. By Jon
Katz.

June
1, 2006

My
time in jails; my time in court.

My
daily fights for justice for my clients bring me to court constantly for
trials, pretrial matters, and other procedural matters, about which I have
written extensively here.
Unfortunately, because of the overly draconian federal rules that turn the
presumption of evidence on its head by presuming a huge universe of defendants
too much of a flight risk pretrial to even give any bond (e.g., for possessing
as little as 50 grams of cocaine base (aka crack cocaine) (that's the same
weight as 50 sugar packets at a diner); the Supreme Court has upheld the
Constitutionality of this approach), state bonds that often are too high (I am
delighted when my first jail visit becomes my last, when intervening successful
bond hearing battles win my clients' freedom), and clients who have been
convicted (sometimes before my involvement with the case, sometimes not), I
often visit jails and prisons.

All
jails are dehumanizing places, even the low-security, fenceless prison where
Martha Stewart served her time. They often are worse than that, including the
Maryland Penitentiary in downtown Baltimore, and the nearby Maryland Supermax
prison, where to this day I wonder if two of my previous clients who spent time
there became delusional only after being thrown in the prison system.

Yesterday,
I visited potential clients at the jails in Clarksburg and Upper Marlboro,
Maryland. Both places present rather spotless and modern visiting areas and
hallways for visitors. The inmates, though, suffer daily dehumanization,
boredom, and misery from being forced there. I imagine that the guards often
experience the same, with the difference being that they get to go home at the
end of the shift, and they have the choice to change jobs (not always an easy
choice if similar pay and benefits are not readily available). The Clarksburg
jail opened a few years ago, thus converting an easy drive to the Rockville jail
into a twenty-five mile hike to Clarksburg. The visitors' areas are completely
antiseptic, too antiseptic; for a non-public defender lawyer to get a contact
visit with a client (without the glass partition), advance permission must be
sought.

The
Upper Marlboro jail has been around since the 1980's, at least. Every time I go,
the hallways smell like chicken soup, mixed with different amounts of sweat. The
officers are very accommodating to give me a contact visit, as each housing unit
has a contact visit booth and three non-contact booths. A judge once told of the
predecessor jail, where I suppose because of its design and security setup,
inmate-upon-inmate assault apparently was more common. He told of an inmate who
was killed as a result of being forced to give oral sex to another inmate,
choking on the inmate's semen. Being an inmate brings daily misery.

One
of my clients, a wonderful man and a political activist, refused to give a
random urine sample while in prison. He proclaimed himself a political prisoner
in making his refusal. He was sent to segregated housing as punishment; at least
he was not forced to provide any urine, but this highlights how little privacy
inmates have (let alone the shrinking privacy we all have).

My
one run-in with jailers came nearly ten years ago. I was on my way to be
interviewed at the last law firm with which I ended up working before opening
our current firm eight years ago. On the way, I stopped at the Maryland
Correctional Institution in Jessup to meet a client. Seeing an imposing dog by
the metal detector, I inquired whether it was a drug dog; it was. Not interested
in trading my privacy rights to that level, I said I'd return when the dog was
not there.

Tensions
were high at this prison at the time, I imagine, coming soon after a then-recent
Maryland high court decision reversing the drug felony conviction of a man who
had drugs in his trunk, which the prison officials ordered searched when he
opted to leave the prison grounds rather than submit to a random car search
before proceeding to the parking lot. The court rightfully ruled that he had the
right to leave, and that there was no lawful basis to search his car.

I
could have just left without saying anything; I certainly was offended by this
invasion of privacy. At the time, I was still with the Maryland Public
Defender's Office. A managing prison officer made a big and loud deal of my
refusal to be sniffed for drugs. He acted incredulous that I would not agree to
be sniffed; cops often act incredulous when they stop a car and the driver
refuses to talk (even though such refusal is a Constitutional right). He huffed
and he puffed, and he threatened to call my boss, which he did.

All
hyped from this situation, I continued to downtown Washington for my law firm
interview. In part because I was so hyped, the interview became somewhat of a
sparring match, in that the litigation partner at this civil litigation firm (I
felt it important to have some civil trial experience added to my criminal
defense experience) was peppering me with questions about my ability to
transition from criminal defense to civil litigation, and I peppered him back
with my responses and own thoughts. Figuring a few minutes into the interview
that I'd not get the job, so that I'd learn more about the firm, anyway, I was
surprised to hear when the litigation partner needed to leave, that he thought I
had some of the essential ingredients to be successful there, including being
aggressive. I got hired two days later.

Intervening
between the prison dog incident and being hired at my last law firm came the
next day, meeting with my boss and her assistant. They surmised the prison might
not let me back without taking a drug test first, which would have been clean as
a whistle. When I said I wasn't inclined to agree to a drug test, my boss said
"This is your career," which it clearly was not. It reminds me of a
quote I heard from the great trial lawyer Tony Serra, to which I have long
ascribed, that we must follow our consciences at all times.

Too
many people through their twenties, and some into their thirties, did not
experience the days when our lives were not so hypergoverned with being
monitored by cameras, drug dogs, and metal detectors. As time marches on, more
and more security personnel will have less personal experience with that, as
well; our liberties will continue to suffer more as a result. By Jon
Katz.

-
FourthAmendment.com - The site's
author, John Wesley Hall, is a Little Rock, AK, attorney. Another Little Rock
attorney, Bill Clinton, underlined that it's certainly not only Republican
presidents who trample on the Bill of Rights. Were that not so, why did Clinton
make sure to witness an execution during his 1992 presidential campaign?

-
Magistrate's Blog
- From an anonymous English judge. Please let us know of any equally frank blogs
from any judges in the United States.

-
Sentencing
Law and Policy - Plea bargaining was the most distasteful part of becoming a
criminal defense lawyer. Sentencing ran a close second.

-
Truth About False
Confessions - If the police assert a suspect confessed voluntarily, without
coercion, and having fully waived the right to remain silent and to have the
presence of counsel, see if the police can back it up with a reliable, unedited
videotape of the discussion showing everything happening in the interview room,
including how small the room is, how many police tower over the suspect wearing
their guns and handcuffs, how booming their voice are, how often the suspect is
permitted breaks/ food/drink, and the extent to which the suspect has been
given the opportunity for deep sleep in a comfortable bed after a home-cooked
meal. In other words, the un-coerced confession is a rarity, and courts
repeatedly do injustice by permitting coerced statements into evidence.

-
Underdog Blog - To the
end that all lawyers, the courts, government, and everyone serve justice at
every turn, at all times, and at all costs.

-
Becker-Posner Blog - Federal
judge and University of Chicago economics professor discuss government and
economics.

-
Cato-At-Liberty
- Raising timely public policy issues, including the United States' shameful
concentration camps for those of Japanese ancestry, legislation on online
gambling, and farm subsidies. The Cato Institute (not from the Green Hornet) claims
to be libertarian.

-
Criminal Waste
of Space - Musings of a California appellate judge on such matters as Dick
Cheney's marksmanship, lack of public confidence in American governors, and
admitting his press overexposure.

-
Drug War Rant - In his 1980's Steal
This Urine Test, Abbie Hoffman recommends crank calls to drug testing
companies. By now, it could take decades to make a daily crank call to a
different drug testing entity (including all the hospitals that are part of the
action).

-
Judge Jones's Blog - Two Texas
judges provide information on court procedure, including a clothing prohibition
on football sweatshirts, rock band pictures, and Harley shirts, but allowing
Ralph Lauren Polo shirts. How is this not content-based gagging?

-
Loose Robes - Its blogmaster says:
"After twenty-four years in the criminal justice system -- as defense
attorney, prosecutor, and judge -- I stepped away and looked back in dismay. My
overall feeling was not one of accomplishment, of a job well done. My sense,
rather, was one of relief that I was getting out of the pit. I had burned
out."